Justices Let U.S. Transfer Padilla to Civilian Custody

By LINDA GREENHOUSE

Published: January 5, 2006

The Supreme Court late Wednesday granted the Bush administration's request to transfer the terrorism suspect Jose Padilla from military to civilian custody, ending an odd two-week standoff over where he should be held while the justices decide whether to hear his case.

The court's order means that Mr. Padilla will be held in a federal prison in Miami rather than a Navy brig in Charleston, S.C., while he waits to learn whether the justices will take up his appeal of a decision that upheld, in sweeping terms, the government's authority to keep citizens it designates enemy combatants in open-ended military confinement.

While the immediate practical effect was minimal, and the court did not suggest how it might ultimately act in Mr. Padilla's case, the action was something of a victory for the administration after an embarrassing rebuff by a usually friendly federal appeals court that had refused to permit Mr. Padilla's transfer.

The Supreme Court's unsigned one-page order reviewed the recent convoluted history of the case and concluded by noting only that the court would consider Mr. Padilla's pending petition ''in due course.''

That petition, seeking review of a federal appeals court decision that upheld the government's authority to keep Mr. Padilla in open-ended military detention as an enemy combatant, is scheduled to go before the justices at their closed-door conference on Jan. 13.

The administration is arguing that his appeal has been rendered moot by the government's decision to try him on terrorism charges in the Federal District Court in Miami, where he was indicted by a grand jury on Nov. 17.

Mr. Padilla's lawyers are arguing, to the contrary, that the indictment has not made his appeal moot because the administration has not withdrawn his designation as an enemy combatant and has not foreclosed the prospect of sending him back to military detention if he is acquitted in a civilian trial.

The United States Court of Appeals for the Fourth Circuit, which includes South Carolina and which had earlier issued the decision upholding Mr. Padilla's military detention, refused to authorize the transfer from the brig, where he has been held for more than three years. It issued an opinion on Dec. 21 that suggested in stinging terms that the administration was now manipulating the federal court system, with ''intentional mooting,'' in order to avoid Supreme Court review of the case.

In his opinion for the appeals court, Judge J. Michael Luttig said that while there might be valid reasons for the administration's request for an ''eleventh-hour transfer'' of Mr. Padilla, ''any legitimate reasons are not evident, and the government has not offered explanation.'' He continued: ''On an issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course.''

Judge Luttig, the author of the Fourth Circuit decision that Mr. Padilla has appealed to the Supreme Court, has generally been supportive of the administration's claims of broad executive authority and was on the short list for the court's recent vacancies. His opinion this time set off a flurry of new Supreme Court filings, led by the administration, which a week ago asked the justices to ''recognize the release and transfer of Jose Padilla'' from the Charleston brig to the federal prison in Miami.

Solicitor General Paul D. Clement told the court that the Fourth Circuit's order refusing the transfer ''is based on a mischaracterization of events and an unwarranted attack on the exercise of executive discretion, and, if given effect, would raise profound separation-of-powers concerns.''

In response, Mr. Padilla's lawyers told the court on Friday that while their client was ''certainly eager to be released from the military brig where he has been held virtually incommunicado and in solitary confinement for the past three and a half years,'' the justices should wait the two weeks that it would take to consider his underlying appeal ''in an orderly fashion.''

The lawyers said ''it would be highly imprudent for this court to hold that the government has an unlimited ability to transfer prisoners in military custody while their habeas petitions are pending.'' Mr. Padilla's Supreme Court appeal, Padilla v. Hanft, No. 05-533, began as a petition for a writ of habeas corpus, a challenge to the constitutionality of his confinement.

On Tuesday, the administration filed another brief with the court, reiterating the request for a transfer while conceding that Mr. Padilla's case would still be eligible for Supreme Court review even if he were no longer in military custody. ''Granting the application will not prejudice this court's consideration of Padilla's petition,'' the brief said, adding, ''It would, however, eliminate the anomaly of a citizen being held by the military against the wishes of both the executive and the detainee (at least in all but the short run).''

With the Supreme Court still technically on its Christmas recess, its action late Wednesday afternoon came as something of a surprise. ''The government's application presented to the chief justice and by him referred to the court is granted,'' the order said.

Mr. Padilla, an American convert to Islam, was arrested in May 2002 at O'Hare International Airport in Chicago and transferred to military custody the next month. Initially, the administration described him as a trained operative of Al Qaeda on a mission to detonate a radioactive ''dirty bomb'' and blow up apartment buildings. His indictment in November mentioned neither of those accusations, instead charging him with ''material support'' to terrorists.

In his Dec. 21 opinion, Judge Luttig was critical of the government's failure to explain ''the difference in the facts asserted to justify Padilla's military detention and those for which Padilla was indicted.'' The government ''surely must understand,'' he said, that its actions had left ''the impression that Padilla may have been held for these years, even if justifiably, by mistake -- an impression we would have thought the government could ill afford to leave extant.''